Citation Nr: 1509672
Decision Date: 03/09/15 Archive Date: 03/17/15
DOCKET NO. 12-00 583 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New York
THE ISSUE
Entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability of the right knee claimed as the result of surgery performed at a Department of Veterans Affairs (VA) medical facility in September 2008.
REPRESENTATION
Appellant represented by: New York State Division of Veterans' Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Hannan, Counsel
INTRODUCTION
The Veteran appellant had active service in the United States Marine Corps from August 1995 to August 1999.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in New York, New York.
In October 2012, a videoconference hearing was held between Albany, New York and the Board in Washington, DC before the undersigned Veterans Law Judge who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107. A transcript of that hearing has been associated with the claims file.
In addition to the paper claims file, there is an electronic file associated with the appellant's claim. The electronic file does not currently contain evidence pertinent to the appellant's claim that is not already included in the paper claims file.
FINDING OF FACT
The appellant did incur additional disability of the right knee proximately caused by lack of proper skill, error in judgment or similar instance on the part of the VA in furnishing surgical treatment in September 2008.
CONCLUSION OF LAW
The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of the right knee (limitation of motion, pain and instability) claimed as due to VA treatment have been met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. §§ 3.361, 17.32 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. VA's Duty to Notify and Assist
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is granting in full the benefits sought on appeal in relation to the 38 U.S.C.A. § 1151 claim. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.
II. The Merits of the Claim
In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The provisions of 38 U.S.C.A. § 1151 allow that compensation under chapters 11 and 13 of 38 U.S.C. shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service connected. For the purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and -
(1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary [of the VA], either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was --
(A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or
(B) an event not reasonably foreseeable;
38 U.S.C.A. § 1151.
In January 2008, the appellant presented to a VA facility with complaints of right knee pain. He reported that the knee had never given out on him. On physical examination, there was tenderness to palpation over the distal aspect of the medial collateral ligament. The joint was stable and the drawer sign was negative. There was crepitus on range of motion. The appellant was subsequently diagnosed with a medial meniscus tear and he underwent a right knee arthroscopy with partial medial menisectomy at a VA facility in February 2008. Prior to that procedure, the appellant exhibited a full range of right knee motion without pain. There was no instability of the right knee. During that procedure, a right anterior cruciate ligament (ACL) tear was observed. In March 2008, the appellant reported decreased post-operative pain and denied symptoms of snapping and locking in the right knee or the right knee giving out. On physical examination, the appellant exhibited full extension and full flexion of the right knee. The knee was stable to varus and valgus stress.
In September 2008, the appellant underwent a right knee partial medial menisectomy with ACL reconstruction with an autologous hamstring graft in a VA facility. Six months after the surgery, the appellant reported that he currently had more symptoms that he did before the surgery. He complained of pain and a reduced range of motion. An April 2009 VA treatment note reflects that the appellant complained of severe pain and reported that the right knee had buckled on him.
The appellant thereafter sought private treatment and he underwent a right knee diagnostic arthroscopy, open removal of tibial screw, debridement of ACL graft and tibial socket with placement of graft substitute in tibial socket, arthroscopic debridement and removal of ACL graft and periretinacular release in October 2009. The associated operative note states that the femoral and tibial tunnels were both too anterior on the index reconstruction. These were felt to block the appellant's full flexion. In addition, the tibial fixation was noted to have been accomplished with a long screw with a ligament washer; this was also noted to protrude from the posterolateral aspect of the tibia and had created an erosion in the head of the fibula.
The appellant was afforded a VA medical examination in May 2010; the examining orthopedic surgeon reviewed the claims file. The appellant complained of the right knee giving way, instability, pain, stiffness, weakness and incoordination. He reported experiencing a decreased range of motion, daily subluxation and weekly locking of the right knee. On physical examination, the appellant had an antalgic gait. Mild instability was present. The appellant exhibited a range of motion of 5 to 130 degrees in the right knee; this was reduced to 5-120 degrees after repetitive motion. There was pain on motion. The examiner stated that the residuals of the appellant's right ACL reconstruction included pain, limited motion, giveaway (instability) in extension and pain with motion. The examiner opined that it was at least as likely as not that the right knee condition was caused by or a result of the surgical treatment in September 2008. The examiner noted that, in his experience and in the medical literature, tunnel placement was the most critical aspect of ACL reconstruction with the most common error being placement of either the tibial or femoral tunnel too anteriorly which can limit flexion or cause graft impingement. The examiner further opined that the painful limited motion seen after the ACL reconstruction was at least as likely as not caused by or a result of technical error in the anterior graft placement.
In August 2010, the private orthopedic surgeon who performed the October 2009 right knee surgery wrote that the appellant's knee flexion had been markedly limited due to a non-anatomic non-isometric placement of the ACL graft. In October 2011, this surgeon noted that the appellant had rare instances of instability. In December 2011, in his VA Form 9, the appellant stated that he experienced instability, limitation of motion and stiffness following use of his right knee.
In view of the foregoing, and with the resolution of reasonable doubt in the Veteran's favor, the Board finds that the current residuals of the appellant's September 2008 ACL reconstruction include pain, limited motion, giveaway (instability) in extension and pain with motion and that these were proximately caused by a lack of proper skill or errors in judgment, or similar instance of fault on the part of VA in furnishing the September 2008 surgical treatment. The lack of proper skill and errors in judgment were manifested by the too anterior placement of both the femoral and tibial tunnels and by the placement of a screw that protruded from the tibia and caused an erosion in the head of the fibula. Therefore, the Board finds that the criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability of the right knee have been met.
ORDER
Benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability of the right knee (pain, limitation of motion and instability) claimed as the result of VA surgical treatment undertaken in September 2008 are granted.
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DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs